Opinion
February, 1936.
Order of the Surrogate's Court of Westchester county in so far as it directs a trustee under a last will and testament to pay to the life tenant the sum of $1,000 out of the principal of the trust, the amount to be repaid out of earned income of the trust fund whenever it may be done without jeopardizing the estate or the care of the life tenant-respondent, reversed on the law, with costs to appellant, payable out of the estate, and motion denied, with ten dollars costs, payable out of the estate. The court was without power to make the order appealed from depleting the corpus of the trust fund, which cannot be alienated and is indestructible, in accordance with the expressed intent of the testator. (Pers. Prop. Law, § 15; Real Property Law, § 103; Metcalfe v. Union Trust Co., 181 N.Y. 39; Cuthbert v. Chauvet, 136 id. 326; Dale v. Guaranty Trust Co., 168 App. Div. 601; Matter of Wentworth, 230 N.Y. 176; Matter of Hanna, 155 Misc. 833; Matter of Bendick, 149 id. 415.) Lazansky, P.J., Young, Hagarty, Johnston and Taylor, JJ., concur.